Thus, on a bare reading of this language it is clear that one part of the procedure envisaged is the one under Rule 2 wherein after receipt of summons for appearance the defendant shall not defend the suit unless he enters appearance and in the event of his not entering appearance the allegations in the plaint arc to he deemed to he admitted and the plaintiff is entitled to a decree. In this view of the matter if the defendant enters appearance as per Order 37 Rule 2, then this one stage of the plaintiff to be entitled to decree is lost. Obviously, therefore, thereafter the plaintiff has to proceed further and after the defendant so enters appearance, the plaintiff is to serve on the defendant a summon for judgment which has to be returnable after a particular length of time, it is to be supported by affidavit, verifying the cause of action, and the amount claimed, and also stating that in his belief there is no defence to the suit. It is only and only after the plaintiff does all this, that the defendant attracts any obligation to apply for leave to defend. Otherwise in absence of any such service of summons for judgment, in the scheme of things, the defendant is very much entitled to forget about the suit and just lie low. Not only this in my opinion until and unless the defendant is served with summons for judgment in accordance with Order 37 Rule 3(4), the defendant even does not gel any right to even apply for leave to defend, much less can such application at all be considered on merits, by the learned trial court. Until and unless the defendant is served with the necessary papers including affidavit of the plaintiff verifying the cause of action and the amount claimed and also deposing that in his belief there is no defence to the suit, the defendant is not required, rather even not entitled, to apply for leave to defend, as until all this is done, in the set up of things it cannot be said that the defendant is at all even supposed to defend any action.
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Rajasthan High Court
Sewa Ram vs Firm Modaram Tulsiram on 9 January, 2001
Equivalent citations: 2001 (2) WLC 312, 2001 (1) WLN 570
Bench: N Gupta
